In defense of ‘political’ motivations

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 This past week, the right of Israel's representative bodies to exercise independent judgment was moved to the top of the national agenda. One month shy of the general elections, the media and the activist legal community launched an unrelenting attack against the members of the Central Elections Committee, indirectly indicting the institutional legitimacy of the Knesset.


The controversy surrounded the fact that the committee's decisions this week to allow the candidacy of Baruch Marzel and reject the Knesset candidacies of MKs Ahmed Tibi and Azmi Bishara and Bishara's Balad Party were made in spite of the express wishes of the committee's chairman, Supreme Court Justice Mishael Cheshin.


According to Israel's Basic Law: The Knesset, "A list of candidates will not take part in the elections to the Knesset nor shall an individual person be a candidate for the Knesset if the goals or deeds of the list or the deeds of the person explicitly or implicitly, are one of the following: (1) reject the existence of the State of Israel as a Jewish and democratic state; (2) incite to racism; (3) support the armed struggle of an enemy state or terrorist organization against the State of Israel."


In accordance with this Basic Law, members of the Central Elections Committee debated this week whether or not to ban certain members of Knesset, candidates and lists of candidates from the upcoming elections. In accordance with the Elections to the Knesset Law, the 41-member Central Elections Committee is composed of representatives of the various Knesset factions based on the representational key of roughly one member for each four MKs from large parties with special provisions for representatives of small factions. The law calls for a Supreme Court justice to preside over the committee and grants him voting rights.


After debating evidence brought before it and listening to candidates' testimonies, the committee this week ruled to allow MK Abd el-Malak Dahamshe, Baruch Marzel, and candidate lists Ram, Hadash, Herut, and Labor to run for Knesset and barred MKs Tibi and Bishara and Bishara's Balad Party from running for office. The committee's votes on Tibi, Bishara, Balad, and Marzel were, as stated, made contrary to the expressed views of Justice Cheshin.


For their labors, committee members were treated to personal attacks by the media fueled by negative remarks made by Cheshin himself, as well as by other legal icons such as retired Supreme Court Justice Yitzhak Zamir.


Ma'ariv's Aryeh Bender wrote a scathing indictment of the committee on Wednesday. He bemoaned Cheshin's plight of being forced to "descend from the heights of the judiciary to act as a kindergarten teacher and a legal adviser to a group of apparatchiks, most of them low level, and also some MKs and lawyers."



For his part, Yediot Aharonot's Gabi Baron wrote, "The committee's political character placed its honorable chairman, Justice Cheshin, in a tough position when he was forced to hear that they 'don't care' about his recommendations."


Cheshin himself made no secret of his contempt for the members of the committee.


In one instance, when requested by MK Michael Kleiner to delay debate on Azmi Bishara's case in order to enable more committee members to be present to hear Bishara's testimony, Cheshin reportedly replied that there was no reason to hold up the hearing. Even if the committee members were there, he said, "It is open to question whether they could understand [what they heard]."


Zamir joined the attacks on the committee, telling Yediot, "It is a scandal that the committee members voted contrary to the chairman's views. It is evidence of a further deterioration of Israeli political culture… It is unacceptable that they would ignore his view of legal matters and decide according to political interests."


Perhaps the most upsetting aspect of all these attacks on members of the committee is that they fly in the face of court precedent in defining Israeli administrative law. According to judicial precedent, members of administrative bodies in Israel are legally required to regard all issues brought before them "with an open heart and a receptive soul." That is, if the Central Elections Committee members were to disregard evidence brought before them, suspend their own judgment and vote simply in accordance with the wishes of Cheshin, then they would be breaking the law.


Cheshin argued, "In order to disqualify a list or a candidate, absolute proof of a total rejection of the state as a Jewish democratic state and absolute racism is needed." Why absolute proof is necessary, when in regular legal proceedings proof needs only to rise to the level of "beyond a reasonable doubt," is unclear. But on the basis of his own legal interpretation, it is similarly unclear why Justice Cheshin insisted on barring Baruch Marzel from running for office.


It is true that in the 1980s, as a member of Rabbi Meir Kahane's Kach Party, Marzel made racist statements against Arabs. But as far as the public record is concerned, he has not repeated those remarks in recent years. Cheshin himself originally rejected Labor's request to disqualify Marzel's candidacy stating that the party presented no compelling evidence of racism.


It was only when Attorney-General Elyakim Rubinstein added classified information to Labor's petition that Cheshin decided to allow debate on Marzel to go forward in the committee. And yet, after the committee voted to allow Marzel to run, Cheshin publicly stated that he was "shocked" by the committee's decision. Gavel in hand, Cheshin stated, "I hope that the Supreme Court will rectify the situation. The decision about Marzel was wrong."


In contrast to the paucity of the public record on Marzel, press reports of statements made by Bishara and Tibi indicate clearly that both have made racist statements, have rejected the Jewish democratic character of the state and have supported armed struggle by terrorist organizations against the state. And as opposed to Marzel's statements, both men have made these remarks as recently as this past year. In fact, while Cheshin called for disqualification of Marzel on grounds of racism alone, Tibi and Bishara have made public remarks that would tend to show them in breach of all the possible justifications for disqualification – racism, support for terrorism, and rejection of Israel's Jewish democratic character.


In February 2002, Tibi visited PA Chairman Yasser Arafat in Ramallah and joined him in calling out, "Millions of martyrs [i.e. suicide bombers] are marching on Jerusalem." In May 2001, Tibi defended Hizballah's abduction of three IDF soldiers claiming that the terrorist organization "had to kidnap the Israelis because of mentality of the Israeli leadership and its stupidity." In late June 2001, Tibi was listed by Arafat's office as an officer of the Palestinian Authority. Specifically he was listed as Arafat's "Israeli affairs adviser." On June 2, the cabinet announced its determination that the PA is a "terror-stained entity."


MK Azmi Bishara has participated in conferences in the PA calling for continued "resistance" to the IDF. He is currently standing trial for his participation in a meeting in June 2001 in Syria, where, flanked by Hizballah leader Hassan Nasrallah, he called on Arab countries to promote "resistance" against Israel.


Unlike Marzel, who owned up to his previous racist statements but argued they no longer represent his views, both Tibi and Bishara improbably denied they had ever made any such statements although such statements are a matter of public record. Bishara even managed the improbable trick of denying his rejectio
n of the state while rejecting the state.


Thus, arguing against Shin Bet evidence of his activities against the state (including allegedly telling members of Balad's youth movement to act like soldiers, because they would one day defeat the Zionists in battle), Bishara dismissed the Shin Bet's right, as an organ of the state, to collect evidence against him. "For Israeli Arabs," Bishara argued, "the Shin Bet is a political force that interferes with political life. Therefore it does not have the right to present evidence."


Acting on the basis of the evidence presented before them, and in spite of attempts by Cheshin and the media to influence their decisions, the committee members made their decisions in accordance with the law. In so acting they upheld the independence of the Knesset and behaved in accordance with norms of administrative law.


And yet, immediately after the committee had concluded its deliberations, both Cheshin and Labor MK Ofir Pines Paz declared their view that the law itself is wrong and that, by rights, Cheshin himself ought to be the sole authority vested with the power to disqualify candidates. Both men called for the Elections Law to be changed to reflect their views.


In so arguing, Pines Paz and Cheshin were striking a blow at the very foundations of Israeli democracy. To argue that 'political' considerations that may or may not have influenced committee members are somehow contaminated and only legal philosopher kings like Cheshin can be trusted is to argue that Israelis cannot be trusted with democracy. The argument also ignores the fact that Cheshin himself, like his colleagues on the Supreme Court, has his own a political worldview that shapes his judgments. It is an open secret that the political worldviews of the Supreme Court justices do not constitute a representative sample of the variety of views of Israeli society.


Understanding the gravity of the task of disqualifying candidates, the Knesset legislated that the multi-partisan Central Elections Committee in which all factions of the Israeli body politic have a voice would make such decisions. It behooves all those who claim to speak out in favor of our democracy to value this wealth of representation and to respect and uphold the work of the committee as all representative bodies of our democracy should be respected.


Originally published in The Jerusalem Post.

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